“The worst form of justice is the one that is delayed. Even if the judgment is righteous in the end, delayed justice is oppression.”
Orhan Gazi
COMPENSATION COMMISSION AND REASONABLE TIME: IMPROVEMENT OF TRIAL PERIODS
1. INTRODUCTION
One of the most significant judicial problems regarding the functioning of the justice system is the prolonged duration of trials and the inability to complete trials within a reasonable time.
The European Court of Human Rights (“ECtHR“) decided in the case of Ümmühan Kaplan v. Türkiye dated 20 March 2012 that an effective domestic remedy providing adequate and appropriate compensation must be established in Türkiye in respect of applications pending before it for the complaints of lengthy trials that were registered prior to 23 September 2012 when the right of individual application to the Constitutional Court (“CC“) was recognized.
As a result of the above-mentioned decision and to improve Türkiye’s negative profile in the international arena with regard to the length of trials, the Compensation Commission Presidency (“Commission”) was established as a domestic legal mechanism by Law No. 6384 on the Duties and Working Procedures and Principles of the Compensation Commission (“Law“) published in the Official Gazette dated 19 January 2013.
It should not be forgotten that in our country, those whose cases are not concluded within a reasonable time or who claim a violation of rights regarding the execution of court judgments have to apply to the Constitutional Court before applying to the ECtHR. However, this has created a serious workload for the Constitutional Court. Although the Constitutional Court has decided on some of the individual applications alleging violations of the right to due process and enforcement of court judgments, the workload of the Constitutional Court has increased due to the high volume of individual applications to the Constitutional Court and the large number of applications regarding other areas of violations. In this context, with the provisional Article 2 added to the Law, it has been decided that the Commission will examine individual applications pending before the Constitutional Court as of the date of entry into force of the relevant article (31 July 2018) exclusively for complaints of the right to a trial within a reasonable time and complaints of late execution/incomplete execution or non execution of court decisions.
As a matter of fact, the Constitutional Court has emphasized in numerous judgments that an effective domestic legal mechanism must be established in order to ensure a trial within a reasonable time. Thus, in the Nevriye Kuruç pilot judgment (Kuruç Decision), it was determined that there is a structural problem regarding the right to be tried within a reasonable time, and despite all kinds of measures taken to eliminate this structural problem, an effective remedy must be established before the individual application in accordance with Article 40 of the Constitution in order to compensate the damages arising from the violation of the right to be tried within a reasonable time. Similarly, in the Keser Altıntaş decision, it was stated that the Constitutional Court’s examination of the allegation that the trial was not conducted within a reasonable period of time makes the Constitutional Court function as a compensation court in a sense. In addition, it was stated that examining the applications alleging violation of the right to a trial within a reasonable time may also cause a reasonable time problem before the Constitutional Court.
2. Tasks of the Compensation Commission
The scope of the Commission’s duties pursuant to Article 2/1 of the Law are the complaints regarding
i) lengthy trials,
ii) Late execution/incomplete execution or non-execution of court judgments
However, the duties of the Compensation Commission have been expanded in accordance with the published Council of Ministers Decrees, Presidential Decrees and legal regulations.
In this context, the duties of the Commission can be categorized as follows:
A. Duties with respect to Applications to the European Court of Human Rights (ECtHR)
• Applications to the ECtHR claiming that the proceedings were not concluded within a reasonable time,
• Applications to the ECtHR alleging late, incomplete or no non-execution of court judgments,
• Applications to the ECtHR claiming that the loss in value of the expropriation or easement right has not been compensated.
• Applications to the ECtHR regarding violations of the rights of convicts and detainees in penal institutions as set out in the Decrees of the Council of Ministers dated February 10, 2014 and numbered 2014/5917 and dated March 09, 2016 and numbered 2016/8509,
• Applications filed with the claim that the right to property has been violated due to the cancellation of the land registry on the grounds that it is a forest or due to the application of Article 2/B of the Law No. 6831 dated 31/8/1956, or upon the determination that the real estate with a land registry is in a forest area as a result of cadastral determination or forest cadastre,
• Applications claiming violation of the right to property due to the cancellation of the land registry on the grounds that it is within the coastal-edge line,
• Applications alleging violation of the right to property upon the allocation of real estate to public service in the zoning plan,
• With the Presidential Decree dated March 07, 2019 and numbered 809, to examine and decide on material and moral compensation claims in some property rights violation applications made to the ECtHR, following the decision of violation by the ECtHR.
B. Duties in terms of Constitutional Court Applications
Pending before the Constitutional Court,
• Finalization of the applications regarding the inadmissibility decision given as a result of the applications made to the Constitutional Court with the claim of violation of the right to be tried within a reasonable time,
• Finalization of the applications regarding the inadmissibility decision issued as a result of the applications made to the Constitutional Court with the claim that the court decisions are executed late or incompletely or not executed at all,
• Applications to be made regarding the inadmissibility decision to be rendered due to non-exhaustion of remedies as a result of the applications filed with the Constitutional Court with the claim of violation of the right to be tried within a reasonable time,
• Applications alleging violation of the right to a trial within a reasonable time, which the Constitutional Court dismissed on the grounds that there were no grounds justifying the continuation of the examination,
• As a result of the Constitutional Court’s decision of dismissal on the grounds that there is no justification for the continuation of the examination, or as a result of the applications regarding the violation of the right to trial within a reasonable time made directly to the European Court of Human Rights as of 10.10.2023, the applications to be made regarding the inadmissibility decision of the ECtHR based on the grounds that domestic remedies have not been exhausted can be applied to the Commission.
C. Applications to be made directly to the Compensation Commission
• After March 12, 2024, investigations and prosecutions under criminal law and proceedings under private and administrative law may be brought directly to the Commission on the grounds that they have not been concluded within a reasonable time.
D. Applications for Compensation for Material and Moral Damages Arising from Protective Measures (Criminal Procedure Code (CMK) 141-142)
• After 01 June 2024, pursuant to the second paragraph of Article 142 of the Code of Criminal Procedure No. 5271, applications for compensation for all kinds of pecuniary and non-pecuniary damages arising from the decisions falling within the scope of paragraphs 141/1-e, f and l of the Code of Criminal Procedure and finalized after 01 June 2024 can be made to the Commission.
3. The Expansion of the Duties of the Compensation Commission Presidency after the 8th Judicial Package
• One of the biggest recent developments is the 8th judicial package, in which the Compensation Commission’s mandate was expanded. As a result of the entry into force of Law No. 7499 on the Amendment of Criminal Procedure and Some Laws, adopted by the Turkish Grand National Assembly on March 2, 2024:
i. For applications to be filed with the allegation that the proceedings have not been concluded within a reasonable time; during the investigation, prosecution, or trial process, or at the latest within one month after it is learned that they have been concluded with a final decision,
ii. Individual applications pending before the Constitutional Court as of the date of entry into force of this Law, within three months following the notification of the inadmissibility decision due to non
exhaustion of the application remedies,
iii.Individual applications in respect of which the Constitutional Court has decided to dismiss on the grounds that there are no grounds justifying the continuation of the examination, within three months from the date of entry into force of this Article or from the notification of the dismissal decision,
iv. The applications filed directly to the European Court of Human Rights as of 10.10.2023 or upon the Constitutional Court’s decision of dismissal on the grounds that there are no grounds justifying the continuation of the examination, within three months from the notification of the inadmissibility decision of this Court based exclusively on the grounds of non-exhaustion of domestic remedies.
4. How to Apply to the Commission?
In terms of applications made to the ECtHR; it is made with an official registration acceptance letter showing the date and number of the application to the ECtHR, the application form, other information and documents, a signed petition containing the identity information of the applicant.
In terms of applications made to the Constitutional Court, it shall be made with a signed petition containing the applicant’s identity information, the date and number of the application to the Constitutional Court. The petition must be accompanied by the form of the individual application to the Constitutional Court, the inadmissibility decision and the notification of this decision, and other information and documents related to the alleged violation.
In addition, it is also possible to apply to the Compensation Commission through the Chief Public Prosecutor’s Office for both applications to the ECtHR and applications to the Constitutional Court. Since the Chief Public Prosecutor’s Office will send the application directly to the Commission, the date of the application to the Chief Public Prosecutor’s Office will be taken as the basis.
It is not possible to apply to the Commission through the National Judicial Network Project (UYAP).
5. Bar Stamp and Power of Attorney Certificate Copy Fees Obligation
In cases where the original power of attorney is submitted, the bar stamp must be affixed, regardless of whether the authority to which the power of attorney is submitted is a judicial authority or not.
In the event that copies of the power of attorney signed by the lawyer as “as original” are submitted, the bar stamp must be affixed and the power of attorney certified copy fee must be paid.
6. Working Principles and Procedures of the Commission
The Commission operates as an administrative board. While the Commission’s review process and procedure are administrative, its decisions will be subject to judicial review.
The Commission is composed of five members: four judges appointed by the Ministry of Justice and one appointed by the Minister of Treasury and Finance. The Commission will convene with an absolute majority of its members and make decisions by an absolute majority of those attending the meeting.
7. Criticism against the Commission
There is a view that the transfer of judicial power from independent courts to the Commission is contrary to Article 9 of the Constitution, which states that “Judicial power shall be exercised by independent courts on behalf of the Turkish Nation”. In addition, the fact that lawyers do not receive attorney fees for applications to the Commission is also problematic.
8. Conclusion
In conclusion, the establishment of the Commission and expansion of its jurisdiction are considered significant steps toward improving the judicial processes in Türkiye. This mechanism, created in accordance with decisions from the European Court of Human Rights, aims to address violations stemming from prolonged trial durations and unexecuted court decisions. However, criticism surrounds the transfer of judicial authority from independent courts to an administrative body, which is seen as contradicting the principle that judicial power belongs to independent courts as stipulated in the Constitution. This issue is likely to remain a topic of debate in the future. Ultimately, while the operations and decisions of the Compensation Commission contribute positively to the functioning of the justice system, they warrant careful consideration regarding the independence and efficacy of the judiciary.
